December 21 2010
The scientific and technical innovations of recent years are indicative of a technological revolution which has had a significant impact on society, including the law.
Globalisation challenges the legal boundaries of national states and their legal systems, creating new conflicts which are often related to new technologies. One such new technology is the emergence and boom of the Internet, which, due to its inherently global nature, frequently renders existing legal regulations obsolete, generating situations for which there is no appropriate legal rule or even cases where there is absolutely no legal regulation.
New technologies, particularly the Internet, have been creating problematic situations relating to copyright, confidential information and trademark issues.
For example, the use of trademarks on the Internet has raised new and serious problems - which include the registration of domain names using third parties' registered trademarks and other issues related to processes such as linking and meta-tagging.
The judgment outlined below is of significant importance to the absence of any specific regulation in Argentina, related to the responsibilities of internet service providers with regard to, for example, the content of third-party websites is paramount.
The Court of Appeals in Civil Matters, Division D recently rendered a significant judgment relating to new technologies and their legal regulation. The decision dealt with the liability of web search engines regarding the content of third-party websites.
A singer and model (a former member of a popular local music group) filed a complaint against search engines Google Inc and Yahoo! Argentina SRL, based on the fact that her image and name appeared on several websites containing sexual, pornographic and other sex trade-related content. Users could access these websites by typing the singer's name into the search field of Google Inc and Yahoo!.
First instance judgment
The first instance judge upheld the complaint and ordered the web search engines to pay the singer compensation for mental distress and to remove the links between the search engines and the websites that contained sexual content and the singer's image or name.
Court of appeals judgment
The appeal filed against the first instance judgment was heard by the Court of Appeals in Civil Matters, Division D, which on August 10 2010 established, in a split decision, that unless web search engines have been duly notified about the existence of illicit content, they are not liable for the content of third-party websites.
The court determined that the issues related to the liabilities of the different online parties were of novel subject matter, since the situation under analysis (ie, modern information and communication technologies and the Internet) is in itself totally novel and not yet subject to any specific regulation. Therefore, the court of appeals applied the general rules of the Civil Code.
The court also determined that the parties responsible for the content of the websites are not the search engines which provide access thereto, but rather the owners of the accessed websites.
Consequently, the court of appeals' reversal of the appealed judgment set forth that the civil liability of the web search engines is effective only after the injured party has made a claim requesting the blocking of online content that is considered to be harmful. In this regard, it is necessary that the injured party acts in good faith identifying the specific content expected to be blocked and its location.
This judgment determines that unless web search engines have been duly notified about the existence of illicit content, they cannot be held liable for the content of third-party websites.
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